G.R.No.179031.November14,2012.

PEOPLE OF THE PHILIPPINES, plaintiffappellee, vs.

BENJAMINSORIAyGOMEZ,accusedappellant.

Criminal Law Rape AntiRape Law of 1997 (R.A. No. 8353)

Republic Act No. 8353, otherwise known as the AntiRape Law of 1997,
classifiedthecrimeofrapeasacrimeagainstpersons.RepublicActNo.
8353, otherwise known as the AntiRape Law of 1997, classified the crime
ofrapeasacrimeagainstpersons.ItalsoamendedArticle335oftheRPC
and incorporated therein Article 266A which reads: Article 266A. Rape,
When and How Committed.Rape is committed1) By a man who shall
have carnal knowledge of a woman under any of the following
circumstances: a) Through force, threat or intimidation b) When the
offended party is deprived of reason or is otherwise unconscious, c) By
means of fraudulent machination or grave abuse of authority d) When the
offendedpartyisundertwelve(12)yearsofageorisdemented,eventhough
none of the circumstances mentioned above be present 2) By any person
who,underanyofthecircumstancesmentionedinparagraph1hereof,shall
commitanactofsexualassaultbyinsertinghispenisintoanotherpersons
mouth or anal orifice, or any instrument or object, into the genital or anal
orificeofanotherperson.
Same Same Rape can now be committed either through sexual
intercourseorbysexualassault.Rapecannowbecommittedeither

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*SECONDDIVISION.

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through sexual intercourse or by sexual assault. Rape under paragraph 1 of

the abovecited article is referred to as rape through sexual intercourse.
Carnal knowledge is the central element and it must be proven beyond
reasonable doubt. It is commonly denominated as organ rape or penile
rape and must be attended by any of the circumstances enumerated in
subparagraphs(a)to(d)ofparagraph1.
Same Same Rape by Sexual Assault Rape under paragraph 2 of
Article266Aiscommonlyknownasrapebysexualassaultiscommittedby
the perpetrator by inserting his penis into another persons mouth or anal
orifice,oranyinstrumentorobjectintothegenitaloranalorificeofanother
person.Rape under paragraph 2 of Article 266A is commonly known as
rape by sexual assault. The perpetrator, under any of the attendant
circumstances mentioned in paragraph 1, commits this kind of rape by
inserting his penis into another persons mouth or anal orifice, or any
instrument or object into the genital or anal orifice of another person. It is
alsocalledinstrumentorobjectrape,alsogenderfreerape.
RemedialLawCriminalProcedureInformationTheallegationinthe
information of the various ways of committing the offense should be
regarded as a description of only one offense and the information is not
thereby rendered defective on the ground of multifariousness.The
Information stated that appellant inserted his penis into the genital of
AAA, which constituted rape by sexual intercourse under the first
paragraph of Article 266A. At the same time, the Information alleged that
appellant used force and intimidation to commit an act of sexual assault.
While these allegations cause ambiguity, they only pertain to the mode or
manner of how the rape was committed and the same do not invalidate the
Information or result in the automatic dismissal of the case. [W]here an
offense may be committed in any of the different modes and the offense is
alleged to have been committed in two or more modes specified, the
indictmentissufficient,notwithstandingthefactthatthedifferentmeansof
committing the same offense are prohibited by separate sections of the
statute.Theallegationintheinformationofthevariouswaysofcommitting
the offense should be regarded as a description of only one offense and the
information is not thereby rendered defective on the ground of
multifariousness. Any objection from the appellant with respect to the
Informationisheldtohavebeen

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waivedfailinganyefforttoopposethesamebeforetrial.Hethereforecanbe
convicted of rape through sexual intercourse or rape by sexual assault,
dependingontheevidenceadducedduringtrial.
Criminal Law Rape It takes a certain amount of psychological
depravity for a young woman to concoct a story which would put her own
fatherinjailfortherestofhisremaininglifeanddragtherestofthefamily
including herself to a lifetime of shame unless the imputation is true.It
would be highly inconceivable for AAA to impute to her own father the
crimeofrapingherunlesstheimputationistrue.Infact,ittakesacertain
amount of psychological depravity for a young woman to concoct a story
whichwouldputherownfather[in]jailfortherestofhisremaininglifeand
drag the rest of the family including herself to a lifetime of shame unless
the imputation is true. When a rape victims testimony on the manner she
was defiled is straightforward and candid, and is corroborated by the
medical findings of the examining physician [as in this case], the same is
sufficienttosupportaconvictionforrape.
Same Same Rape by Sexual Assault The Supreme Court found
appellantguiltyofrapebysexualassault.Itcannotbedeniedthatappellant
insertedanobjectintoAAAsfemaleorgan.AAAcategoricallytestified
thatappellantinsertedsomethingintohervagina.Theinsertionevencaused
hervaginatobleednecessitatingherexaminationatthehospital.Wefind
appellant guilty of rape by sexual assault. It cannot be denied that appellant
insertedanobjectintoAAAsfemaleorgan.AAAcategoricallytestified
that appellant inserted something into her vagina. She claimed to have
sufferedtremendouspainduringtheinsertion.Theinsertionevencausedher
vagina to bleed necessitating her examination at the hospital. Both the trial
court and the CA found AAAs testimony to be credible. We find no
compelling reason not to lend credence to the same. This defilement
constitutes rape under paragraph 2 of Article 266A of the RPC, which
provides that rape by sexual assault is committed [b]y any person who,
under any of the circumstances mentioned in paragraph 1 hereof, shall
commitanactofsexualassaultbyinsertingxxxanyinstrumentorobject,
intothegenitaloranalorificeofanotherperson.
Same Same Same What is important and relevant is that indeed
somethingwasinsertedintohervagina.TorequireAAAto

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identifytheinstrumentorobjectthatwasinsertedintohervaginawouldbe
contrary to the fundamental tenets of due process. It would be akin to
requiringAAAtoestablishsomethingthatisnotevenrequiredbylaw.
Intheinstantcase,itwasclearlyestablishedthatappellantcommittedanact
of sexual assault on AAA by inserting an instrument or object into her
genital.WefinditinconsequentialthatAAAcouldnotspecificallyidentify
theparticularinstrumentorobjectthatwasinsertedintohergenital.Whatis
importantandrelevantisthatindeedsomethingwasinsertedintohervagina.
TorequireAAAtoidentifytheinstrumentorobjectthatwasinsertedinto
her vagina would be contrary to the fundamental tenets of due process. It
would be akin to requiring AAA to establish something that is not even
required by law. [Moreover, it might create problems later on in the
application of the law if the victim is blind or otherwise unconscious.]
Moreover, the prosecution satisfactorily established that appellant
accomplished the act of sexual assault through his moral ascendancy and
influenceoverAAAwhichsubstitutedforviolenceandintimidation.Thus,
thereisnodoubtthatappellantrapedAAAbysexualassault.
Same Same Same Hymenal rupture, vaginal laceration or genital
injury is not indispensable because the same is not an element of the crime
ofrape.Anintacthymendoesnotnegateafindingthatthevictimwasraped.
ThefailureofAAAtomentionthatherpantywasremovedpriortothe
rape does not preclude sexual assault. We cannot likewise give credence to
theassertionofappellantthatthecrimeofrapewasnegatedbythemedical
findings of an intact hymen or absence of lacerations in the vagina of
AAA. Hymenal rupture, vaginal laceration or genital injury is not
indispensable because the same is not an element of the crime of rape. An
intacthymendoesnotnegateafindingthatthevictimwasraped.Here,the
findingofreddishdiscolorationofthehymenofAAAduringhermedical
examination and the intense pain she felt in her vagina during and after the
sexualassaultsufficientlycorroboratedhertestimonythatshewasraped.
Same Same Same Penalties Under Article 266B of the Revised
PenalCode,thepenaltyforrapebysexualassaultisprisionmayor.Under
Article 266B of the RPC, the penalty for rape by sexual assault is prision
mayor.However,thepenaltyisincreasedtoreclusiontemporaliftherapeis
committedbyanyofthe10aggra

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vating/qualifying circumstances mentioned in this article. The Information

alleged the qualifying circumstances of relationship and minority. It was
allegedthatappellantisthefatherofAAA.Duringthepretrialconference,
the parties stipulated that AAA is the daughter of appellant. During trial,
appellant admitted his filial bond with AAA. [A]dmission in open court
ofrelationshiphasbeenheldtobesufficientand,hence,conclusivetoprove
relationshipwiththevictim.
Same Same Same Minority Minority must be proved conclusively
and indubitably as the crime itself. There must be independent evidence
proving the age of the victim, other than the testimonies of prosecution
witnesses and the absence of denial by the accused.With respect to
minority, however, the Information described AAA as a 7year old
daughter of appellant. While this also became the subject of stipulation
during the pretrial conference, same is insufficient evidence of AAAs
age.Herminoritymustbeprovedconclusivelyandindubitablyasthecrime
itself.[T]heremustbeindependentevidenceprovingtheageofthevictim,
otherthanthetestimoniesofprosecutionwitnessesandtheabsenceofdenial
by the accused. Documents such as her original or duly certified birth
certificate,baptismalcertificateorschoolrecordswouldsufficeascompetent
evidenceofherage.Here,therewasnothingonrecordtoprovetheminority
of AAA other than her testimony, appellants absence of denial, and their
pretrial stipulation. The prosecution also failed to establish that the
documents referred to above were lost, destroyed, unavailable or otherwise
totallyabsent.
Same Same Same Qualifying Circumstances Relationship and
Minority When either one of the qualifying circumstances of relationship
andminorityisomittedorlacking,thatwhichispleadedintheinformation
and proved by the evidence may be considered as an aggravating
circumstance.It is settled that when either one of the qualifying
circumstancesofrelationshipandminorityisomittedorlacking,thatwhich
ispleadedintheinformationandprovedbytheevidencemaybeconsidered
as an aggravating circumstance. As such, appellants relationship with
AAAmaybeconsideredasanaggravatingcircumstance.

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BRION,J.,DissentingOpinion:
Criminal Law Rape Rape by Sexual Assault View that there is no
admissibleevidencetoshowthattheappellantinsertedhispenisintoAAAs
mouthoranalorifice,oranyinstrumentorobjectintothevictimsgenitalor
anal orifice. In her testimony, AAA merely felt that something had been
inserted in her private part, as a result of which, she felt pain.In the
presentcase,there is no admissible evidence to show that the appellant
insertedhispenisintoAAAsmouthoranalorifice,oranyinstrument
orobjectintothevictimsgenitaloranalorifice.Inhertestimony,AAA
merelyfeltthatsomethinghadbeeninsertedinherprivatepart,asaresult
ofwhich,shefeltpain.Tobesure,hadtherebeenanytestimonythatitwas
the appellants bird that had been inserted into her vagina, the appellants
conviction for rape by sexual intercourse under Article 266A, paragraph 1
should have followed. No such testimony, however, was ever given AAA
merely admitted that her brother BBB told her it was the appellants
birdthathadbeeninserted.Thistestimony,ofcourse,isclearlyhearsay
BBBwasneverpresentedincourttotestify.
Same Same Same View that it is a dangerous proposition to equate
AAAstestimonyofpaininherprivatepartwithrapeitistheinsertionof
an instrument or object into the victims genital or anal orifice, not pain,
thatconstitutesrapethroughsexualassault.Itisadangerousproposition
to equate AAAs testimony of pain in her private part with rape it is the
insertionofaninstrumentorobjectintothevictimsgenitaloranalorifice,
not pain, that constitutes rape through sexual assault. Thus, the victims
testimony should, at the very least, have mentioned that the appellant
inserted an object or instrument in her vagina or anal orifice or she should
have testified on circumstances that would lead us to reasonably conclude
that the appellant inserted an instrument or object into her genital or anal
orifice.Asearlierstated,AAAmerelyfeltpain it was BBB who told her
that it was the appellants bird that had been inserted into her vagina. At
most, AAA merely assumed that something had been inserted into
hervagina.Thisiswhatthetotalityofhertestimonyimplied.
SameSameSameViewthattherewasnocategoricaldeclarationby
Dr.Supethataninstrumentorobjecthadbeeninsertedinto

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the victims private part. Notably, Dr. Supe also declared that the victims
other activities, like playing of riding a bicycle, could lead to a hyperemic
hymen if friction had been applied on the area.Clearly, there was no
categorical declaration by Dr. Supe that an instrument or object had
been inserted into the victims private part. Notably, Dr. Supe also
declared that the victims other activities, like playing of riding a bicycle,
couldleadtoahyperemichymeniffrictionhadbeenappliedonthearea.The
prosecution thus failed to establish the medical basis for a finding of rape
throughsexualassault.
Same Same Same View that when the prosecutions evidence fails to
establishwithmoralcertaintyalltheelementsnecessarytoconsummatethe
crime of rape, a finding by the medicolegal officer that the victim is in a
virgin state, and that her hymen is intact, suffices to cast doubt on the
appellantsculpability.I point out that Dr. Supe found AAA to be in a
virginstatephysicallyhealsofoundherhymentobeintact.Iamnot
unmindful of the oftrepeated doctrine that an intact hymen does not
necessarilyprecludeafindingthatthevictimhadbeenraped.However,when
the prosecutions evidence fails to establish with moral certainty all the
elements necessary to consummate the crime of rape, a finding by the
medicolegalofficerthatthevictimisinavirginstate,andthatherhymen
isintact,sufficestocastdoubtontheappellantsculpability.
Same Same Same View that every circumstance favoring the
accuseds innocence must be duly taken into account. The proof against the
accused must survive the test of reason. Strongest suspicion must not be
permitted to sway judgment. The conscience must be satisfied that on the
accused could be laid the responsibility for the offense charged.In rape
cases, the prosecution bears the primary duty to present its evidence
withclarityandpersuasion,totheendthatconvictionbecomestheonly
logicalandinevitableconclusion.Thefreedomoftheaccusedisforfeited
only if the requisite quantum of proof necessary for conviction be in
existence.This,ofcourse,requiresthemostcarefulscrutinyoftheevidence
fortheState,bothoralanddocumentary,independentofwhateverdefenseis
offeredbytheaccused.Everycircumstancefavoringtheaccusedsinnocence
mustbedulytakenintoaccount.Theproofagainsttheaccusedmustsurvive
the test of reason. Strongest suspicion must not be permitted to sway
judgment.The

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conscience must be satisfied that on the accused could be laid the

responsibilityfortheoffensecharged.
Same Acts of Lasciviousness View that notwithstanding the
prosecutions failure to prove the appellants guilt for rape, I take the view
that sufficient evidence exists to convict him of acts of lasciviousness under
Article336oftheRevisedPenalCode.Achargeofactsoflasciviousnessis
necessarily included in a complaint for rape.Notwithstanding the
prosecutions failure to prove the appellants guilt for rape, I take the view
thatsufficientevidenceexiststoconvicthimofactsoflasciviousnessunder
Article336oftheRevisedPenalCode.Achargeofactsoflasciviousnessis
necessarily included in a complaint for rape. The elements of acts of
lasciviousnessare:(1)thattheoffendercommitsanyactoflasciviousnessor
lewdness(2)thatitisdoneunderanyofthefollowingcircumstances:(a)by
using force or intimidation, (b) when the offended woman is deprived of
reason or otherwise unconscious or (c) when the offended party is under
twelve(12)yearsofageand(3)thattheoffendedpartyisanotherpersonof
eithersex.
Same Lewd Words and Phrases View that lewd is defined as
obscene, lustful, indecent, or lecherous. It signifies that form of immorality
related to moral impurity, or that which is carried on a wanton manner.
Lewdisdefinedasobscene,lustful,indecent,orlecherous.Itsignifies
thatformofimmoralityrelatedtomoralimpurity,orthatwhichiscarriedon
a wanton manner. In Sombilon, Jr. v. People, 601 SCRA 405 (2009), the
Court explained this concept as follows: The term lewd is commonly
definedassomethingindecentorobsceneitischaracterizedbyorintended
to excite crude sexual desire. That an accused is entertaining a lewd or
unchastedesignisnecessarilyamentalprocesstheexistenceofwhichcanbe
inferred by overt acts carrying out such intention, i.e., by conduct that can
only be interpreted as lewd or lascivious. The presence or absence of lewd
designs is inferred from the nature of the acts themselves and the
environmentalcircumstances.

APPEALfromadecisionoftheCourtofAppeals.
ThefactsarestatedintheopinionoftheCourt.
OfficeoftheSolicitorGeneralforplaintiffappellee.
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VOL.685,NOVEMBER14,2012 491
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PublicAttorneysOfficeforaccusedappellant.

DELCASTILLO,J.:
This case involves a fathers detestable act of abusing his
daughterthroughrapebysexualassault.
FactualAntecedents
Accusedappellant Benjamin Soria y Gomez (appellant) seeks a
reviewoftheDecember29,2006Decision1oftheCourtofAppeals
(CA) in CAG.R. CRH.C. No. 01442 which affirmed with
modification the June 30, 2005 Judgment2 of the Regional Trial
Court (RTC) of Quezon City, Branch 94, in Criminal Case No. Q
0198692. Said RTC Judgment found appellant guilty beyond
reasonable doubt of the crime of rape committed against his
daughter AAA,3 as described in an Information,4 the relevant
portionofwhichreads:

That on or about the 26th day of February, 2000, in Quezon City,

Philippines,thesaidaccused,whoisthefatherofprivatecom

_______________
1CARollo,pp.8396pennedbyAssociateJusticeVicenteQ.Roxasandconcurredinby
AssociateJusticeJosefinaGuevaraSalongaandApolinarioD.Bruselas,Jr.
2Records,pp.7681pennedbyJudgeRomeoF.Zamora.
3Theidentityofthevictimoranyinformationwhichcouldestablishorcompromiseher
identity, as well as those of her immediate family or household members, shall be withheld
pursuant to Republic Act No. 7610, An Act Providing for Stronger Deterrence And Special
Protection Against Child Abuse, Exploitation And Discrimination, And for Other Purposes
Republic Act No. 9262, An Act Defining Violence Against Women And Their Children,
ProvidingForProtectiveMeasuresforVictims,PrescribingPenaltiesTherefor,AndforOther
Purposes and Section 40 of A.M. No. 041011SC, known as the Rule on Violence against
Women and Their Children, effective November 5, 2004. People v. Dumadag, G.R. No.
176740,June22,2011,652SCRA535,538539.
4Records,p.1.

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plainant AAA, did then and there willfully, unlawfully, and feloniously
withforceandintimidationcommitanactofsexualassaultupontheperson
of one AAA, a minor, 7 years of age[,] by then and there inserting his
penisinto[the]genitalofsaidcomplainant,allagainstherwillandconsent,
which act debases, degrades, or demeans the intrinsic worth and dignity of
saidAAA,asahumanbeing,inviolationofsaidlaw.
CONTRARYTOLAW.5

Appellant pleaded not guilty to the crime charged. Pretrial and

trialthereafterensued.
VersionoftheProsecution
On February 26, 2000, AAA and her siblings enjoyed the
spaghetti their father (appellant) brought home for merienda. After
eating, AAA went to the bedroom to rest. Thereafter, appellant
alsoenteredtheroomandpositionedhimselfontopofAAA,took
off her clothes and inserted his penis into her vagina. AAA felt
intense pain from her breast down to her vagina and thus told her
fatherthatitwaspainful.Atthatpoint,appellantapologizedtohis
daughter, stood up, and left the room. This whole incident was
witnessedbyAAAsbrother,BBB.
The pain persisted until AAAs vagina started to bleed. She
thus told her aunt about it and they proceeded to a hospital for
treatment.Hermotherwasalsoimmediatelyinformedofherordeal.
Subsequently,AAAwastakenintothecustodyoftheDepartment
ofSocialWelfareandDevelopment.
On March 15, 2000, MedicoLegal Officer Francisco A. Supe,
Jr., M.D. (Dr. Supe) examined AAA, which examination yielded
thefollowingresults:

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5Id.

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VOL.685,NOVEMBER14,2012 493
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GENERAL AND EXTRAGENITAL:Fairly developed, fairly

nourished and coherent female child. Breasts are undeveloped. Abdomen is
flatandsoft.
GENITAL:Thereisabsentgrowthofpubichair.Labiamajoraarefull,
convex, and coaptated with light brown labia minora presenting in between.
On separating the same, disclosed an elastic, fleshy type, hyperemic and
intacthymen.Posteriorfourchetteissharp.
CONCLUSION:Thesubjectisinvirginstatephysically.Thereareno
externalsignsofapplicationofanyformofphysicaltrauma.6

VersionoftheDefense
Appellantadmittedthathewasathomeonthedayandtimeof
AAAs alleged rape but denied committing the same. Instead, he
claimedthatthefilingoftherapecaseagainsthimwasinstigatedby
his wife, whom he confronted about her illicit affair with a man
residing in their community. According to appellant, he could not
have molested AAA because he treated her well. In fact, he was
the only one sending his children to school since his wife already
neglectedthemandseldomcomeshome.
RulingoftheRegionalTrialCourt
OnJune30,2005,thetrialcourtrendereditsJudgment7finding
appellant guilty beyond reasonable doubt of the crime of rape
against AAA, his daughter of minor age, as charged in the
Information.Itruledthatthelackoftenaciousresistanceonthepart
of AAA is immaterial considering that appellants moral
ascendancy and influence over her substitute for violence and
intimidation.8Italsoheldthathiswife

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6Id.,atp.4.
7Id.,atpp.7681.
8Id.,atp.79.

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could not have instigated the filing of the rape case since as the
motherofAAA,itwouldnotbenaturalforhertouseherchildas
a tool to exact revenge especially if it will result in her
embarrassment and stigma.9 The trial court gave credence to the
testimony of AAA and her positive identification of appellant as
herrapist,andrejectedthelattersdefenseofdenial.Thedispositive
portionoftheJudgmentreadsasfollows:

WHEREFORE, premises considered, judgment is hereby rendered

finding the herein accused, BENJAMIN SORIA Y GOMEZGUILTY
beyondreasonabledoubtofthecrimeaschargedandsentenceshimtosuffer
the supreme penalty of DEATH and to indemnify the offended party the
amount of P75,000.00[,] to pay moral damages in the amount of
P50,000.00[,]andtheamountofP25,000.00asexemplarydamagestodeter
other fathers with perverse proclivities for aberrant sexual behavior for
sexuallyabusingtheirowndaughters.
SOORDERED.10

RulingoftheCourtofAppeals
InitsDecision11datedDecember29,2006,theCAfoundpartial
merit in the appeal. While the appellate court was convinced that
appellant raped AAA, it nevertheless noted the prosecutions
failure to present her birth certificate as competent proof of her
minority. Thus, the CA concluded that the crime committed by
appellantagainsthisdaughterwasonlysimplerapeandaccordingly
modified the penalty imposed by the trial court from death to
reclusion perpetua and reduced the civil indemnity awarded from
P75,000.00 to P50,000.00. The dispositive portion of the appellate
courtsDecisionreadsasfollows:

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9Id.,atpp.7980.
10Id.,atp.81.
11CARollo,pp.8396.

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WHEREFORE, premises considered, [the] appeal is hereby

GRANTEDandtheJune30,2005DecisionoftheRegionalTrialCourtof
Quezon City, Branch 94, in Criminal Case No. Q0198692, is hereby
MODIFIED, in that, the penalty imposed is reduced to reclusionperpetua
instead of death and the civil indemnity to be paid by the offender to the
victimisherebyreducedtotheamountofP50,000.00insteadofP75,000.00
pursuanttoprevailingjurisprudenceasexplainedinthisdecision.
Pursuant to Section 13(c), Rule 124 of the 2000 Rules of Criminal
ProcedureasamendedbyA.M.No.00503SCdatedSeptember28,2004,
whichbecameeffectiveonOctober15,2004,thisjudgmentoftheCourtof
AppealsmaybeappealedtotheSupremeCourtbynoticeofappealfiledwith
theClerkofCourtoftheCourtofAppeals.
SOORDERED.12

Still insisting on his innocence, appellant comes to this Court

throughthisappeal.

AssignmentofErrors

Appellantadoptsthesameassignmentoferrorsheraisedbefore
theappellatecourt,viz.:

I.THE TRIAL COURT GRAVELY ERRED IN FINDING THE ACCUSED

GUILTY OF THE CRIME OF RAPE DESPITE THE FAILURE OF THE
PROSECUTION TO OVERTHROW THE CONSTITUTIONAL
PRESUMPTIONOFINNOCENCEXXX.
II.ASSUMING ARGUENDO THAT THE ACCUSED IS GUILTY OF THE
CRIME CHARGED, THE TRIAL COURT GRAVELY ERRED IN
IMPOSINGTHEDEATHPENALTYUPONHIM.13

Appellantassertsthatheshouldbeacquittedofthecrimeofrape
sincethereisnoevidencethatwouldestablishthefact
 _______________
12Id.,atpp.9596.
13Id.,atp.21.

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ofsexualintercourse.Asidefromtheprosecutionsfailuretoprove
penilecontact,AAAstestimonywasalsowantingindetailsasto
howhetookoffherunderwearorwhethershesawhispenisduring
theincidentdespiteleadingquestionspropoundedonthematterby
the prosecution. The medical report even revealed that AAAs
hymenremainedintactandthattherewerenonotablelacerationsor
externalphysicalinjuriesthereon.Appellantthereforesurmisesthat
his wife merely instigated AAA to file this baseless rape case
against him in retaliation for his act of confronting her about her
illicitrelationshipwithaneighbor.

OurRuling

Theappeallacksmerit.
ThecrimeofrapeunderArticle266A
oftheRevisedPenalCode(RPC).
RepublicActNo.8353,otherwiseknownastheAntiRapeLaw
of 1997, classified the crime of rape as a crime against persons. It
also amended Article 335 of the RPC and incorporated therein
Article266Awhichreads:

Article266A.Rape,WhenandHowCommitted.Rapeiscommitted
1)Byamanwhoshallhavecarnalknowledgeofawomanunderanyofthe
followingcircumstances:
a)Throughforce,threatorintimidation
b)When the offended party is deprived of reason or is otherwise
unconscious
c)Bymeansoffraudulentmachinationorgraveabuseofauthority
d)Whentheoffendedpartyisundertwelve(12)yearsofageoris
demented, even though none of the circumstances mentioned
abovebepresent

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2)By any person who, under any of the circumstances mentioned in

paragraph1hereof,shallcommitanactofsexualassaultbyinsertinghispenis
intoanotherpersonsmouthoranalorifice,oranyinstrumentorobject,intothe
genitaloranalorificeofanotherperson.

Thus, rape can now be committed either through sexual

intercourse or by sexual assault. Rape under paragraph 1 of the
abovecitedarticleisreferredtoasrapethroughsexualintercourse.
Carnal knowledge is the central element and it must be proven
beyondreasonabledoubt.14 It is commonly denominated as organ
rape or penile rape15 and must be attended by any of the
circumstances enumerated in subparagraphs (a) to (d) of paragraph
1.
On the other hand, rape under paragraph 2 of Article 266A is
commonlyknownasrapebysexualassault.Theperpetrator,under
any of the attendant circumstances mentioned in paragraph 1,
commits this kind of rape by inserting his penis into another
personsmouthoranalorifice,oranyinstrumentorobjectintothe
genitaloranalorificeofanotherperson.Itisalsocalledinstrument
orobjectrape,alsogenderfreerape.16
TheInformationdidnotspecifywhether
thecrimeofrapewascommittedthrough
sexualintercourseorbysexualassault.
The Information in this case did not specify with certainty
whether appellant committed the rape through sexual intercourse
under paragraph 1 of Article 266A, or rape by sexual assault as
describedinparagraph2thereof.TheInformation

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14Peoplev.Brioso,G.R.No.182517,March13,2009,581SCRA485,493.
15Peoplev.Abulon,G.R.No.174473,August17,2007,530SCRA675,702.
16Id.

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stated that appellant inserted his penis into the genital of AAA,
which constituted rape by sexual intercourse under the first
paragraph of Article 266A. At the same time, the Information
allegedthatappellantusedforceandintimidationtocommitanact
ofsexualassault.Whiletheseallegationscauseambiguity,theyonly
pertaintothemodeormannerofhowtherapewascommittedand
thesamedonotinvalidatetheInformationorresultintheautomatic
dismissalofthecase.[W]hereanoffensemaybecommittedinany
of the different modes and the offense is alleged to have been
committed in two or more modes specified, the indictment is
sufficient, notwithstanding the fact that the different means of
committingthesameoffenseareprohibitedbyseparatesectionsof
thestatute.Theallegationintheinformationofthevariouswaysof
committingtheoffenseshouldberegardedasadescriptionofonly
oneoffenseandtheinformationisnottherebyrendereddefectiveon
thegroundofmultifariousness.17Anyobjectionfromtheappellant
withrespecttotheInformationisheldtohavebeenwaivedfailing
any effort to oppose the same before trial.18 He therefore can be
convicted of rape through sexual intercourse or rape by sexual
assault,dependingontheevidenceadducedduringtrial.
ThefindingsoftheRTCandtheCAon
thecredibilityofAAAdeserverespect
andgreatweight.
BoththetrialcourtandtheCAheldthatAAAwasacredible
witness. They ruled that her testimony deserved credence and is
sufficient evidence that she was raped by appellant. We find no
cogentreasontooverturnthesefindings.

_______________
17Juradov.SuyYan,148Phil.677,68638SCRA663,670671(1971).
18ProvincialFiscalofNuevaEcijav.CourtofFirstInstanceofNuevaEcija,79
Phil.165,168(1947).

499

VOL.685,NOVEMBER14,2012 499
Peoplevs.Soria

It would be highly inconceivable for AAA to impute to her

ownfatherthecrimeofrapingherunlesstheimputationistrue.19In
fact, it takes a certain amount of psychological depravity for a
young woman to concoct a story which would put her own father
[in] jail for the rest of his remaining life and drag the rest of the
family including herself to a lifetime of shame20 unless the
imputationistrue.
Whenarapevictimstestimonyonthemannershewasdefiledis
straightforward and candid, and is corroborated by the medical
findings of the examining physician [as in this case], the same is
sufficienttosupportaconvictionforrape.21
Appellantisguiltyofrapebysexual
assaultandnotthroughsexual
intercourse.
Thetrialcourtsconvictionoftheappellantwasforrapethrough
sexual intercourse under paragraph 1(a) of Article 266A. The CA
sustained the trial courts finding that appellant had sexual
intercoursewithAAAagainstherwill.
Indeterminingwhetherappellantisindeedguiltyofrapethrough
sexualintercourseunderparagraph1ofArticle266A,itisessential
toestablishbeyondreasonabledoubtthathehadcarnalknowledge
ofAAA.Theremustbeproofthathispenistouchedthelabiaof
AAA or slid into her female organ, and not merely stroked the
externalsurfacethereof, to ensure his conviction of rape by sexual
intercourse.22

_______________
19Peoplev.Felan,G.R.No.176631,February2,2011,641SCRA449,453454.
20Id.,atpp.453454,citingPeoplev.Javier,370Phil.128,139311SCRA122,
133(1999).
21Peoplev.Sumingwa,G.R.No.183619,October13,2009,603SCRA638,652.
22Peoplev.Brioso,supranote14atp.495.

500

500 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

WereviewedthetestimonyofAAAandfoundnothingtherein
that would show that she was raped through sexual intercourse.
While AAA categorically stated that she felt something inserted
into her vagina, her testimony was sorely lacking in important
detailsthatwouldconvinceuswithcertaintythatitwasindeedthe
penisofappellantthatwasplacedintohervagina.
WhenAAAwasplacedonthewitnessstand,shenarratedthat:
QTheearlierstatementwhichyoumadewhenyousaidthatyouwantedtoexplain
somethingaboutyourfather,isthattrue?
AYes,sir.
QSo,yousaidthatyouwantedtoexplainsomethingaboutyourfather,whatwas
that?
AWhathedid,sir.
QWhat[was]that?
AIwasraped,sir.
QWhatdidhedowhenyousaidherapedyou?
AHelaidontopofme,sir.23
xxxx
QSowhenyousaidhelaidontopofyou,didyoufeelanything?Didyoufeelany
paininanypartofyourbody?
AYes,sir.
QInwhatpartofyourbodydidyoufeelpain?
AIfeltpaininmybreastandmystomach.
QWhataboutyourprivatepart?
AYes,sir.
QDid you know why your stomach as well as your body and your private part
hurtorbecomepainful?
AIdontknow,sir.

_______________
23Records,unpaginatedTSN,February10,2003,pp.34.

501

VOL.685,NOVEMBER14,2012 501
Peoplevs.Soria

QDidyoufeelsomethinginserted[into]yourprivatepart?
AYes,sir.
QWhatisthat,ifyouknow?
AThebirdofmypapa.
QWhydidyouknowthat?
ABecausemybrother,BBB,toldme.
QWhy?WasBBB,yourbrother,presentwhenyourfatherwasontopofyou?
AYes,sir.
QWhydoyouknowthathewasthere?
AHetoldmeso,sir.
QWho?
ABBB.
QOkay, when you felt pain as something was inserted [into] your private part,
whatdidyousaytoyourfather?
AHelefttheroom.
QBeforehewentawayandleft?
AItwaspainful,sir.
QAndwhatwastheanswerofyourfather?
AHesaidsorry,sir.
QHowlongwasheorhowlongwereyouinthatposition,you[were]lyingdown
andyourfatherwasontopofyou?
AIdonotknow,sir.24
xxxx
QEarlier,youweremakingreferencetoyourfatherwhomyousaidabusedyou.I
amaskingyounowtotellusifyourfatherisaround?
AYes,sir.
QWillyoupleasepointxxxtohim?

_______________

24Id.,id.,atpp.45.Emphasessupplied.

502

502 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

AYes, sir. (Witness pointing to a man who is wearing yellow tshirt and maong
pantswhowhenaskedidentifiedhimselfasBenjaminSoria.)
QIs he the same person who according to you laid on top of you and inserted
something[into]yourvaginaorprivatepart?
AYes,sir.25
 It is evident from the testimony of AAA that she was unsure
whetheritwasindeedappellantspeniswhichtouchedherlabiaand
enteredherorgansinceshewaspinneddownbythelattersweight,
her father having positioned himself on top of her while she was
lyingonherback.AAAstatedthatsheonlyknewthatitwasthe
bird of her father which was inserted into her vagina after being
told by her brother BBB. Clearly, AAA has no personal
knowledgethatitwasappellantspeniswhichtouchedherlabiaand
inserted into her vagina. Hence, it would be erroneous to conclude
that there was penile contact based solely on the declaration of
AAAs brother, BBB, which declaration was hearsay due to
BBBsfailuretotestify.Basedontheforegoing,itwasanerroron
the part of the RTC and the CA to conclude that appellant raped
AAAthroughsexualintercourse.
Instead, we find appellant guilty of rape by sexual assault. It
cannot be denied that appellant inserted an object into AAAs
female organ. AAA categorically testified that appellant inserted
somethingintohervagina.Sheclaimedtohavesufferedtremendous
pain during the insertion. The insertion even caused her vagina to
bleed necessitating her examination at the hospital. Both the trial
courtandtheCAfoundAAAstestimonytobecredible.Wefind
nocompellingreasonnottolendcredencetothesame.
This defilement constitutes rape under paragraph 2 of Article
266AoftheRPC,whichprovidesthatrapebysexual

_______________
25Id.,id.,atp.8.

503

VOL.685,NOVEMBER14,2012 503
Peoplevs.Soria

assault is committed [b]y any person who, under any of the

circumstancesmentionedinparagraph1hereof,shallcommitanact
ofsexualassaultbyinsertingxxxanyinstrumentorobject,intothe
genitaloranalorificeofanotherperson.
Moreover,Dr.Supecorroboratedhertestimonyasfollows:
QDoctor, with respect to Exhibit A, the MedicoLegal Report pertaining to the
entry[into]thegenital,whichreads:Onseparatingthehymen,disclosed[was]
an elastic, fleshy type, hyperemic and intact hymen. Will you please tell us,
Doctor,whatisthishyperemichymen?
AHyperemichymen,sir,meansthatatthetimeofexamination,Ifoundoutthatit
wasreddishincolor.
QConsideringtheageofthechildorthepatient,thevictimwhomyouexaminedat
thattime[who]wasabout6yearsold,willyoubeabletotellus,Doctor,what
couldhavecausedthiskindofinjury,becausethisisaninjurytothehymen?
 AHyperemic,sir,isobservedwheneverthereisfrictionappliedtoanarea,suchas
intheformofscratching.
QWhataboutinsertionofobject,wouldthisresultintohyperemichymen?
AIftheobjectisbeingrubbed,sir,thereisapossibility.
QAfingerwillproducethiskindofinjury?
APossible,sir.26

According to Dr. Supe, it is possible that AAAs hyperemic

hymenmaybetheresultoftheinsertionofafingerorobject.While
Dr. Supe said that the injury could also be attributed to scratching,
AAAstestimonyis bereft of any showing that she scratched her
genitalorganthuscausingthereddening.Appellantwouldalsowant
tomakeitappearthattheinjuryofAAAwastheresultoffriction
from playing or riding a bicycle since the doctor testified that this
was also possible. However, there is likewise no evidence that
friction

_______________
26Id.TSN,July30,2002,p.5.

504

504 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

was applied on AAAs female organ when she played hide and
seekwithherplaymatesorthatsheactuallyrodeabicycle.Onthe
otherhand,AAAwascategoricalinstatingthatintheafternoonof
February26,2000,appellantremovedherclothes,laidontopofher,
and that she felt something being inserted into her vagina and that
thereafter she experienced pain in her genitals. The foregoing thus
provedthatappellantinsertedanobjectintoAAAsvaginaagainst
her will and without consent. Simply put, appellant committed the
crimeofrapebysexualassault.
Thefollowingaretheelementsofrapebysexualassault:
(1)Thattheoffendercommitsanactofsexualassault
(2)Thattheactofsexualassaultiscommittedbyanyofthefollowingmeans:
(a)Byinsertinghispenisintoanotherpersonsmouthoranalorificeor
(b)Byinsertinganyinstrumentorobjectintothegenitaloranalorificeof
anotherperson
(3)That the act of sexual assault is accomplished under any of the following
circumstances:
(a)Byusingforceandintimidation
(b)Whenthewomanisdeprivedofreasonorotherwiseunconsciousor
(c)Bymeansoffraudulentmachinationorgraveabuseofauthorityor
(d)Whenthewomanisunder12yearsofageordemented.27
 In the instant case, it was clearly established that appellant
committed an act of sexual assault on AAA by inserting an
instrumentorobjectintohergenital.Wefinditinconsequentialthat
AAAcouldnotspecificallyidentifytheparticu

_______________
27 Reyes, Luis B., The Revised Penal Code, Book Two, Seventeenth Edition, p.
557.

505

VOL.685,NOVEMBER14,2012 505
Peoplevs.Soria

lar instrument or object that was inserted into her genital. What is
importantandrelevantisthatindeedsomethingwasinsertedintoher
vagina. To require AAA to identify the instrument or object that
was inserted into her vagina would be contrary to the fundamental
tenets of due process. It would be akin to requiring AAA to
establish something that is not even required by law. [Moreover, it
might create problems later on in the application of the law if the
victimisblindorotherwiseunconscious.]Moreover,theprosecution
satisfactorily established that appellant accomplished the act of
sexual assault through his moral ascendancy and influence over
AAAwhichsubstitutedforviolenceandintimidation.Thus,there
isnodoubtthatappellantrapedAAAbysexualassault.
Appellantscontentionsareuntenable.
The failure of AAA to mention that her panty was removed
prior to the rape does not preclude sexual assault. We cannot
likewisegivecredencetotheassertionofappellantthatthecrimeof
rape was negated by the medical findings of an intact hymen or
absence of lacerations in the vagina of AAA. Hymenal rupture,
vaginallacerationorgenitalinjuryisnotindispensablebecausethe
same is not an element of the crime of rape.28 An intact hymen
does not negate a finding that the victim was raped.29 Here, the
findingofreddishdiscolorationofthehymenofAAAduringher
medical examination and the intense pain she felt in her vagina
during and after the sexual assault sufficiently corroborated her
testimonythatshewasraped.
Likewise undeserving of credence is appellants contention that
hiswifemerelyinstigatedAAAtofilethechargeof

_______________
28Peoplev.Valenzuela,G.R.No.182057,February6,2009,578SCRA157,169
170.
29Peoplev.Tampos,455Phil.844,858408SCRA403,414415(2003).
 506

506 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

rape against him in retaliation for his having confronted her about
her illicit affair with another man. This imputation of ill motive is
flimsyconsideringthatitisunnaturalforappellantswifetostoopso
low as to subject her own daughter to the hardships and shame
concomitant with a prosecution for rape, just to assuage her hurt
feelings.30 It is also improbable for appellants wife to have dared
encouragetheirdaughterAAAtopubliclyexposethedishonorof
thefamilyunlesstherapewasindeedcommitted.31
Penalty
UnderArticle266BoftheRPC,thepenaltyforrapebysexual
assault is prision mayor. However, the penalty is increased to
reclusion temporal if the rape is committed by any of the 10
aggravating/qualifyingcircumstancesmentionedinthisarticle.The
Informationallegedthequalifyingcircumstancesofrelationshipand
minority. It was alleged that appellant is the father of AAA.
Duringthepretrialconference,thepartiesstipulatedthatAAAis
thedaughterofappellant.32Duringtrial,appellantadmittedhisfilial
bondwithAAA.33[A]dmissioninopencourtofrelationshiphas
been held to be sufficient and, hence, conclusive to prove
relationshipwiththevictim.34
With respect to minority, however, the Information described
AAA as a 7year old daughter of appellant. While this also
became the subject of stipulation during the pretrial conference,
sameisinsufficientevidenceofAAAsage.Herminoritymustbe
provedconclusivelyandindubitablyasthe

_______________
30Peoplev.Palgan,G.R.No.186234,December21,2009,608SCRA725,731.
31Id.,atpp.731732.
32Records,p.14.
33Id.TSN,October22,2003,p.3.
34Peoplev.Padilla,G.R.No.167955,September30,2009,601SCRA385,397.

507

VOL.685,NOVEMBER14,2012 507
Peoplevs.Soria

crimeitself.35[T]heremustbeindependentevidenceprovingthe
age of the victim, other than the testimonies of prosecution
witnesses and the absence of denial by the accused.36 Documents
such as her original or duly certified birth certificate, baptismal
certificateorschoolrecordswouldsufficeascompetentevidenceof
herage.37Here,therewasnothingonrecordtoprovetheminorityof
AAAotherthanhertestimony,appellantsabsenceofdenial,and
theirpretrialstipulation.38 The prosecution also failed to establish
that the documents referred to above were lost, destroyed,
unavailableorotherwisetotallyabsent.39
Itissettledthatwheneitheroneofthequalifyingcircumstances
of relationship and minority is omitted or lacking, that which is
pleaded in the information and proved by the evidence may be
considered as an aggravating circumstance.40 As such, appellants
relationship with AAA may be considered as an aggravating
circumstance.
In view of these, the imposable penalty is reclusion temporal
whichrangesfromtwelve(12)yearsandone(1)daytotwenty(20)
years. Applying the Indeterminate Sentence Law, the penalty next
lower in degree is prision mayor which ranges from six (6) years
andone(1)daytotwelve(12)years.Hence,apenaltyoftwelve(12)
years of prision mayor, as minimum, to twenty (20) years of
reclusiontemporal,asmaximum,isimposeduponappellant.

_______________
35Peoplev.Albalate,Jr.,G.R.No.174480,December18,2009,608SCRA535,
546,citingPeoplev.Manalili,G.R.No.184598,June23,2009,590SCRA695,716.
36Id.,citingPeoplev.Tabanggay,390Phil.67,91334SCRA575,600601(2000).
37Peoplev.Padilla,supraatpp.397398.
38Id.,atp.398.
39Id.
40Peoplev.Hermocilla,G.R.No.175830,July10,2007,527SCRA296,304305,
citingPeoplev.Esperanza,453Phil.54,7576405SCRA175,192(2003).

508

508 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

Damages
In line with prevailing jurisprudence, the awards of P50,000.00
ascivilindemnity,P50,000.00asmoraldamagesandP25,000.00as
exemplary damages are each modified to P30,000.00.41 AAA is
alsoentitledtoaninterestonalltheamountsofdamagesawardedat
the legal rate of 6% per annum from the date of finality of this
judgmentuntilfullypaid.42
WHEREFORE,theDecember29,2006DecisionoftheCourtof
Appeals in CAG.R. CRH.C. No. 01442 is AFFIRMED with
MODIFICATIONS.AccusedappellantBenjaminSoriayGomezis
foundguiltybeyondreasonabledoubtofthecrimeofrapebysexual
assaultandissentencedtosufferthepenaltyoftwelve(12)yearsof
prision mayor, as minimum, to twenty (20) years of reclusion
temporal as maximum. He is also ordered to pay AAA the
amounts of P30,000.00 as civil indemnity, P30,000.00 as moral
damages,andP30,000.00asexemplarydamages.AAAisentitled
to an interest on all damages awarded at the legal rate of 6% per
annumfromthedateoffinalityofthisjudgmentuntilfullypaid.
SOORDERED.

Carpio(Chairperson),PerezandPerlasBernabe,JJ.,concur.
Brion,J.,Idissent.

_______________
41Peoplev.Alfonso,G.R.No.182094,August18,2010,628SCRA431,452.
42Peoplev.Flores,G.R.No.177355,December15,2010,638SCRA631,643.

509

VOL.685,NOVEMBER14,2012 509
Peoplevs.Soria

DISSENTINGOPINION

BRION,J.:
I DISSENT as I believe that the prosecution has not proven
beyondreasonabledoubtthatappellantBenjaminSoriaisguiltyof
rapethroughsexualassaultunderArticle266A,paragraph2ofthe
RevisedPenalCode,asamended.
As my discussions below will show, the appellant should be
acquittedofthiscrimeongroundsofreasonabledoubt,andshould
insteadbeconvictedofthelessercrimeandincludedcrimeofacts
oflasciviousnessthecrimethat,undertheavailableevidence,has
beenprovenbeyondreasonabledoubt.
TheAntecedents:
Theevidencefortheprosecutionshowedthatintheafternoonof
February26,2000,AAA1andhersiblingsatethespaghettithattheir
father(theappellant)broughthomeformerienda.Therecordsalso
show that after AAA finished eating, the appellant went on top of
herandremovedherclothes.2AAAfeltpaininherbreastsandin
her stomach she also felt that something had been inserted
into her private part. When AAA told the appellant that she felt
paininherprivatepart,thelatterapologizedtoherandthenleftthe
room.TheincidentwasallegedlywitnessedbyBBB,whotoldAAA
that it was the appellants bird that had been inserted into her
vagina. AAA reported the incident to her aunt, CCC, who told her
thattheappellantwasabadperson.CCCaccompaniedAAAtothe
hospital when AAAs vagina started to bleed. AAA also informed
hermotherwhat
 _______________
1SeeourrulinginPeoplev.Cabalquinto,533Phil.703502SCRA419(2006).
2There is nothing in the transcript of stenographic notes that supports the
ponenciasnarrationthatAAAwentinthebedroomtorestaftereating.

510

510 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

theappellantdidtoher.Thereafter,AAAwascommittedtothecare
andcustodyoftheDepartmentofSocialWelfareandDevelopment.
The prosecution charged the appellant with the crime of rape
under Article 266A of the Revised Penal Code, as amended, in
relationtoRepublicActNo.7610,beforetheRegionalTrialCourt
(RTC),Branch94,QuezonCity.Initsjudgment3ofJune30,2005,
theRTCfoundtheappellantguiltybeyondreasonabledoubtofthe
crime of rape by sexual intercourse,4 and it imposed the death
penalty. It also ordered him to pay the victim the amounts of
P75,000.00 as civil indemnity, P50,000.00 as moral damages, and
P25,000.00asexemplarydamages.
On appeal, the Court of Appeals (CA) affirmed the RTC
judgment with the following modifications: (1) the appellant was
foundguiltyofsimplerapeonly(2)thedeathpenaltywasreduced
to reclusion perpetua and (3) the amount of civil indemnity was
reducedtoP50,000.00.5
The ponencia affirmed the CA decision with the following
modifications: (1) the appellant is found guilty of rape through
sexual assault under Article 266A, paragraph 2 of the Revised
Penal Code, as amended (2) he is sentenced to suffer the
indeterminate penalty of twelve (12) years of prision mayor, as
minimum,totwenty(20)yearsofreclusiontemporal,asmaximum
and (3) on his liability for damages (a) the amount of civil
indemnity is reduced from P50,000.00 to P30,000.00 (b) the
amount of moral damages is reduced from P50,000.00 to
P30,000.00(c)theamountofexemplarydamagesisincreasedfrom
P25,000.00toP30,000.00and(d)theappellantisorderedtofurther
paythevictimintereston

_______________
3PennedbyJudgeRomeoF.ZamoraCARollo,pp.3944.
4Qualifiedbyrelationshipandminority.
5Penned by Associate Justice Vicente Q. Roxas, and concurred in by Associate
JusticesJosefinaGuevaraSalongaandApolinarioD.Bruselas,Jr.Rollo,pp.215.

511
 VOL.685,NOVEMBER14,2012 511
Peoplevs.Soria

alldamagesawardedatthelegalrateof6%perannumfromthedate
offinalityofthejudgmentuntilfullypaid.
TheDissent:
IclarifyattheoutsetthatIagreewiththeponenciasconclusion
that the appellant cannot be convicted of rape by sexual
intercourseunderArticle266A,paragraph1oftheRevisedPenal
Code, as amended. The prosecution failed to establish beyond
reasonabledoubttheelementofcarnalknowledge.
My opposition stems from the ponencias finding that the
appellantshouldbeconvictedofrapethroughsexualassaultunder
Article266A,paragraph2oftheRevisedPenalCode,asamended.
UnderArticle266A,paragraph2oftheRevisedPenalCode,as
amended,rapethroughsexualassaultiscommitted[b]yanyperson
who, under any of the circumstances mentioned in paragraph 1
hereof,shallcommitanactofsexualassaultbyinserting his penis
into another persons mouth or anal orifice, or any instrument or
object,intothegenitaloranalorificeofanotherperson.6
In the present case, there is no admissible evidence to show
that the appellant inserted his penis into AAAs mouth or anal
orifice, or any instrument or object into the victims genital or
anal orifice. In her testimony, AAA merely felt that something
had been inserted in her private part, as a result of which, she felt
pain. To be sure, had there been any testimony that it was the
appellants bird that had been inserted into her vagina, the
appellants conviction for rape by sexual intercourse under Article
266A, paragraph 1 should have followed. No such testimony,
however,wasevergivenAAAmerelyadmittedthatherbrother
BBBtoldheritwastheappellantsbirdthathadbeeninserted.

_______________
6Underscoringours.

512

512 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

This testimony, of course, is clearly hearsay BBB was never

presentedincourttotestify.
Onthebasisofthisevidence,theponenciaholdsthatwhileithad
notbeenclearlyestablishedthatitwastheappellantspenisthathad
been inserted into AAAs vagina, it cannot be denied that the
appellant inserted an object into the victims female organ. The
ponencia based its conclusion on the following circumstances: (a)
AAA experienced pain when the appellant inserted something in
her vagina7 and (b) Dr. Francisco Supe, Jr. testified that the
victims hyperemic hymen could have been caused by an object
beingrubbedonherprivatepart.
I find the ponencias reasoning and conclusion seriously
flawed.
First,itisadangerouspropositiontoequateAAAstestimonyof
paininherprivatepartwithrapeitistheinsertionofaninstrument
or object into the victims genital or anal orifice, not pain, that
constitutesrapethroughsexualassault.Thus,thevictimstestimony
should,attheveryleast,havementionedthattheappellantinserted
an object or instrument in her vagina or anal orifice or she should
have testified on circumstances that would lead us to reasonably
concludethattheappellantinsertedaninstrumentorobjectintoher
genital or anal orifice. As earlier stated, AAA merely felt pain it
was BBB who told her that it was the appellants bird that
had been inserted into her vagina. At most, AAA merely
assumedthatsomethinghadbeeninsertedintohervagina.Thisis
whatthetotalityofhertestimonyimplied.
Significantly, the records bear out that the appellant removed
onlyAAAsclothes,andnotherunderwear, during the incident.
Todirectlyquotefromtherecords:

_______________
7Ponencia,p.11.

513

VOL.685,NOVEMBER14,2012 513
Peoplevs.Soria

FISCALBENDELACRUZ:
Q:Soyousaidyouwantedtoexplainsomethingaboutyourfather,whatwasthat?
AAA:
A:Whathedid,sir.
Q:Whatisthat?
A:Iwasraped,sir.
Q:Whatdidhedowhenyousaidherapedyou?
A:Helaidontopofme,sir.
Q:Didyouhaveyourdressonwhenhedidthat?
A:Yes,sir.
Q:Whataboutyourunderwear?Didyouhaveyourunderwearon?
A:Yes,sir.
Q:Hedidnotremoveanyofyourclothes?
A:Onlymyclothes,sir.8(emphasisours)

This circumstance makes the insertion of an object or

instrument into the victims genital highly improbable.
ConsideringthatAAAalsotestifiedthatshefeltpaininherbreasts
and stomach when the appellant went on top of her, it is not far
fetched that the pain she felt in her private part could have been
caused by the appellants weight being pressed against her whole
body,anditwasnotduetotheinsertionofanobjectintohervagina.
Second,Dr.SupesMedicoLegalReportandcourttestimony
did not support the ponencias conclusion that the appellant
insertedanobjectorevenhispenisintoAAAsvagina.Dr.Supe
testifiedthatheconductedamedicalexaminationonAAAonMarch
3,2000,andmadethefollowingfindings:

_______________
8TSN,Febuary10,2003,pp.34.

514

514 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

GENERAL AND EXTRAGENITAL: Fairly developed, fairly nourished

and coherent female child. Breasts are undeveloped. Abdomen is flat and
soft.
GENITAL: There is absent growth of pubic hair. Labia majora are full,
convex,andcoaptatedwithlightbrownlabiaminorapresentinginbetween.
On separating the same, disclosed an elastic, fleshy type, hyperemic and
intacthymen.Posteriorfourchetteissharp.
CONCLUSION: The subject is in virgin state physically. There are no
externalsignsofapplicationofanyformofphysicaltrauma.9(emphasis
ours)

According to Dr. Supe, a hyperemic hymen is the result of the

application of friction, such as scratching, on the hymen. Dr. Supe
further stated that the insertion of an object could result to a
hyperemic hymen if this object was rubbed. For clarity and
precision,IquotetherelevantportionsofDr.Supestestimony:
ASSISTANTCITYPROSECUTORBENDELACRUZ:
Q:Doctor, with respect to Exhibit A, the MedicoLegal Report pertaining to the
entryonthegenital,whichreads:Onseparatingthehymen,disclosedanelastic,
fleshytype, hyperemic and intact hymen. Will you please tell us, Doctor,
whatisthishyperemichymen?
DR.FRANCISCOSUPE,JR.:
A:Hyperemic hymen, sir, means that at the time of the examination, I found out
thatitwasreddishincolor.
Q:Considering that the age of the child or the patient, the victim whom you
examinedatthattimewhichwasabout6yearsold,willyoubeabletotellus,
Doctor,whatcouldhavecausedthistypeofinjury,becausethisisaninjuryto
thehymen?
 A:Hyperemic, sir, is observed whenever there is friction applied to an area,
suchasintheformofscratching.

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9Ponencia,p.3.

515

VOL.685,NOVEMBER14,2012 515
Peoplevs.Soria

Q:Whataboutinsertionofanobject,wouldthisresultintohyperemichymen?
A:Iftheobjectisbeingrubbed,sir,thereisapossibility.
Q:Afingerwouldproducethatkindofinjury?
A:Possible,sir.
xxxx
ATTY.JOSEPHSIA:
Q:The friction that caused the hyperemic hymen would be caused by other
activitiesofthechild,likeforexampleplayingorbicycleriding?
DR.SUPE,JR:
A:Ifthereisafriction,itispossible.10(emphasesours)

Clearly,therewasnocategoricaldeclarationbyDr.Supethat
an instrument or object had been inserted into the victims
privatepart.Notably,Dr.Supealsodeclaredthatthevictimsother
activities,likeplayingofridingabicycle,couldleadtoahyperemic
hymeniffrictionhadbeenappliedonthearea.Theprosecutionthus
failed to establish the medical basis for a finding of rape through
sexualassault.
Finally,IpointoutthatDr.SupefoundAAAtobeinavirgin
state physically11 he also found her hymen to be intact. I am
notunmindfuloftheoftrepeateddoctrinethatanintacthymendoes
not necessarily preclude a finding that the victim had been raped.
However, when the prosecutions evidence fails to establish with
moralcertaintyalltheelementsnecessarytoconsummatethecrime
ofrape,afindingbythemedicolegalofficerthatthevictimisina
virginstate,andthatherhymenisintact,sufficestocastdoubton
theappellantsculpability.

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10TSN,July30,2002,pp.56.
11Records,p.4.

516

516 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria
 In rape cases, the prosecution bears the primary duty to
presentitsevidencewithclarityandpersuasion,totheendthat
conviction becomes the only logical and inevitable conclusion.
The freedom of the accused is forfeited only if the requisite
quantumofproofnecessaryforconvictionbeinexistence.This,of
course, requires the most careful scrutiny of the evidence for the
State,bothoralanddocumentary,independentofwhateverdefense
isofferedbytheaccused.Everycircumstancefavoringtheaccuseds
innocence must be duly taken into account. The proof against the
accused must survive the test of reason. Strongest suspicion must
notbepermittedtoswayjudgment.Theconsciencemustbesatisfied
that on the accused could be laid the responsibility for the offense
charged.12
LewdorLasciviousConductProven
Notwithstandingtheprosecutionsfailuretoprovetheappellants
guilt for rape, I take the view that sufficient evidence exists to
convict him of acts of lasciviousness under Article 336 of the
Revised Penal Code. A charge of acts of lasciviousness is
necessarilyincludedinacomplaintforrape.Theelementsofacts
of lasciviousness are: (1) that the offender commits any act of
lasciviousness or lewdness (2) that it is done under any of the
following circumstances: (a) by using force or intimidation, (b)
when the offended woman is deprived of reason or otherwise
unconscious or (c) when the offended party is under twelve (12)
years of age and (3) that the offended party is another person of
eithersex.13
Lewdisdefinedasobscene,lustful,indecent,orlecherous.It
signifiesthatformofimmoralityrelatedtomoralim

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12SeePeoplev.Fabito,G.R.No.179933,April16,2009,585SCRA591,614.
13Peoplev.Poras,G.R.No.177747,February16,2010,612SCRA624,645,citing
Peoplev.Mingming,G.R.No.174195,December10,2008,573SCRA509,534535.

517

VOL.685,NOVEMBER14,2012 517
Peoplevs.Soria

purity,orthatwhichiscarriedonawantonmanner.14InSombilon,
Jr.v.People,15theCourtexplainedthisconceptasfollows:

Thetermlewdiscommonlydefinedassomethingindecentorobscene
it is characterized by or intended to excite crude sexual desire. That an
accused is entertaining a lewd or unchaste design is necessarily a mental
process the existence of which can be inferred by overt acts carrying out
such intention, i.e., by conduct that can only be interpreted as lewd or
 lascivious. The presence or absence of lewd designs is inferred from the
natureoftheactsthemselvesandtheenvironmentalcircumstances.

The evidence in the present case established that the appellant

wentontopofAAA,andremovedherclothes.Theappellantonly
stopped when the victim told him that she felt pain in her private
part. To my mind, the appellants acts of mounting her very own
daughter, and then removing her clothes, showed lewdness that
constitutesactsoflasciviousness.Theseactsareclearlyindecentand
inappropriate it undeniably demonstrates the appellants gross
moraldepravity.
Inlightoftheseconsiderations,Imaintainthatongroundsof
reasonable doubtthe appellant should be acquitted of the
crime of rape through sexual assault under Article 266A,
paragraph2oftheRevisedPenalCode,asamended.Heshould
instead be convicted of the lesser and included crime of acts of
lasciviousnessas theevidenceon record shows the presence of all
theelementsofthiscrime.

Judgmentaffirmedwithmodifications.

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14Ibid.,citingPeoplev.Lizada,444Phil.67396SCRA62(2003).
15G.R.No.175528,September30,2009,601SCRA405,414.

518

518 SUPREMECOURTREPORTSANNOTATED
Peoplevs.Soria

Notes.The insertion of petitioners fingers into the victims

vagina constituted the crime of rape through sexual assault under
Republic Act (R.A.) No. 8353 or The AntiRape Law of 1997.
(Flordelizvs.People,614SCRA225[2010])
TheverydefinitionofRapethroughSexualAssaultunderArticle
266A(2)ortheAntiRapeLawof1997specificallyincludesthe
insertionofanyinstrumentintothegenitalorificeofanotherperson.
(Peoplevs.Subesa,660SCRA390[2011])
o0o

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